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Commercial Sex: Beyond Decriminalization

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Commercial Sex: Beyond Decriminalization COMMERCIAL SEX: BEYOND DECRIMINALIZATION SYLVIA A. LAW* I. INTRODUCTION..........................................................................526 II. THE CRITIQUE AND DEFENSE OF THE CRIMINAL PROHIBITION OF COMMERCIAL SEX....................................530 A. CRITIQUES OF CRIMINALIZATION............................................530 B. TRADITIONAL MORAL DEFENSE OF CRIMINAL PROHIBITION............................................................................542 C. PUBLIC HEALTH CONCERNS....................................................545 III. ALTERNATIVES TO CRIMINAL PUNISHMENT OF PEOPLE WHO SELL SEX FOR MONEY ...................................552 A. OTHER COUNTRIES..................................................................554 B. UNUSUAL STATES ...................................................................559 C. PUNISHING THE BUYERS .........................................................565 D. PUNISHING THIRD PARTIES WHO PROMOTE AND PROFIT FROM COMMERCIAL SEX.........................................................569 IV. EFFECTIVE LEGAL REMEDIES TO PROTECT COMMERCIAL SEX WORKERS FROM VIOLENCE, COERCION AND ABUSE............................................................572 A. STATUTORY RAPE ...................................................................573 * Elizabeth K. Dollard Professor of Law, Medicine, and Psychiatry, New York University School of Law. B.A., 1964, Antioch College; J.D., 1968, New York University School of Law. Many people helped me in this project. Marcia Neave, a principle architect and critic of the Aus- trialian system provided generous comments, large and small. The students of Martha Fineman’s Seminar on Feminist Jurisprudence read an earlier draft and challenged me on many points. The faculty at the University of Akron and at the University of Hawaii William Richardson School of Law pushed me in provacative ways. Akron Dean and Professor Malina Coleman wisely urged me to focus more on teenaged girls. Professor Linda Kerber provided comments on an early draft and pointed me to Beth Baily and David Farber’s wonderful study of commercial sex in Hawaii during World War II. Profes- sors Martha Chamallas, Debra Rhode and David A.J. Richards offered insight. Several magnificent NYU Law students helped with research and ideas: John Marshall Bellwoar, Joanne Armstrong Brandwood and Adam Wendell, NYU Law 2000, and Seth Nesin, NYU Law 2001. My assistant, Leslie Jenkins, provided excellent help. NYU Law School’s Filomen D’Agostino and Max E. Greenberg Faculty Research Fund contributed financial support. Thanks to all. 523 524 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 73:523 B. RAPE, MARITAL RAPE AND DATE RAPE .................................575 C. DOMESTIC VIOLENCE..............................................................578 D. LEGAL RULES IN ACTION: POLICE AND PROSECUTORIAL PRACTICES...............................................................................579 E. BEYOND CRIMINAL PROSECUTION: PROVIDING SOCIAL SERVICES.................................................................................580 F. COMMERCIAL SEX WORKERS AND PROTECTION AGAINST VIOLENCE: THE POLITICS OF CHANGE....................................581 V. SEX AS WORK .............................................................................586 A. CONFLICTING PARADIGMS OF WORK AND SEX ......................587 B. THE APPLICATION OF TRADITIONAL WORK LAW TO COMMERCIAL SEX...................................................................590 C. SUBSISTENCE AND EXPLICIT CONDITIONS REQUIRING COMMERCIAL SEX WORK .......................................................600 D. ECONOMIC INCENTIVES AND COMMERCIAL SEX....................607 VI. CONCLUSION: THE POLITICS OF REFORM ..........................608 This Article argues that: 1) criminal sanctions against people who of- fer sex for money should be repealed, 2) legal remedies and programs to protect commercial sex workers from violence, rape, disease, exploitation, coercion and abuse should be enhanced and 3) whether or not commercial sex is prohibited by criminal law, government policy should promote de- cent working conditions for all workers and should not require people to engage in sex as a condition of subsistence. It further addresses how, as a practical matter, people who provide commercial sex can best be protected against exploitation, both physical and economic. This Article demon- strates that decriminalization of sexual services is a necessary first step to- ward creating more effective remedies against abuse, protecting vulnerable women and building a more humane society. Part I introduces the law and contested facts. Part II describes and critiques the analyses of other scholars who have grappled with the subject of commercial sex, with a particular focus on debates among feminists. Part III describes a variety of contemporary alternatives to the criminal punishment of those who provide sex for money. Part IV argues that the criminal justice system should do more to protect women who sell sex for money from violence, rape, abuse and exploitation. Part V discusses the exchange of sex for money as a form of work. 2000] COMMERCIAL SEX 525 “Prostitution” is the word ordinarily used to describe the behaviors addressed in this Article.1 This Article will avoid using the terms prostitute or prostitution, except when quoting from others or discussing criminal prosecutions.2 The word “prostitution” both describes and condemns. The primary meaning of the word has a sexual connotation, historically de- scribing women who offer sexual services on an indiscriminate basis, whether or not for money,3 and more recently, the offer of sex for money. But a common secondary meaning of “prostitution” is any service to “an unworthy cause.”4 Because this Article explores whether the denunciation is warranted, it seems better to avoid words that assume the conclusion.5 Further, the term “prostitute” conflates work and identity.6 Women who sell sex for money typically have other identities, that is, daughter, mother, athlete, musician, et cetera. But, as John F. Decker, author of the preemi- nent study, Prostitution: Regulation and Control reminds us, “changing la- bels by itself will have little effect; what is more sorely needed is a change in attitude.”7 1. WEBSTER’S NEW WORLD DICTIONARY 1080 (3d College ed. 1994) defines prostitute as: “1 to sell the services of (oneself or another) for purposes of sexual intercourse 2 to sell (oneself, one’s artistic or moral integrity, etc.) for low or unworthy purposes.” Id. An older definition of “prostitution” “refers to women who for hire or without hire offer their bodies to indiscriminate intercourse with men.” United States v. Bitty, 208 U.S. 393, 401 (1970). With the growing acceptance of noncommer- cial sex outside of marriage, the focus of moral condemnation shifted from promiscuity to commerce. See DAVID A.J. RICHARDS, SEX, DRUGS, DEATH, AND THE LAW 94-95 (1982). 2. Many commercial sex workers prefer the term “whore.” See Wendy McElroy, Prostitutes, Anti-Pro Feminists and the Economic Associates of Whores, in PROSTITUTION: ON WHORES, HUSTLERS, AND JOHNS 333, 342 (James Elias, Veronica Elias & Vern L. Bulloch eds., 1998) [herein- after PROSTITUTION]. 3. MORRIS PLOSCOWE, SEX AND THE LAW 226 (rev. ed. 1962), defines prostitution as “the in- discriminate offer by a female of her body for the purpose of sexual intercourse or other lewdness.” Id. 4. WEBSTER’S NEW WORLD DICTIONARY, supra note 1, at 1080. See also LOIS WINGERSON, UNNATURAL SELECTION 149 (1998) (“‘Scientists are the ultimate prostitutes,’ admitted French geneti- cist Jacques Cohen a few years ago. ‘We have to go wherever we can to get the money we need to put our ideas into effect.’”). 5. Similar issues arise in relation to the words used to describe children whose parents are not married to one another. “Illegitimate children” was the common historic description. But the name implies a substantive conclusion to a contested question. See HARRY D. KRAUSE, ILLEGITIMACY: LAW AND SOCIAL POLICY 82 (1971). 6. People in high status jobs, such as judges or artists, often are proud to conflate work and identity. People in lower status jobs, such as sales clerks or housewives, often resist being defined solely by their work. See Kenneth Karst, The Coming Crisis of Work in Constitutional Perspective, 52 CORNELL L. REV. 523, 533 (1997). 7. JOHN F. DECKER, PROSTITUTION: REGULATION AND CONTROL 455 (1979). 526 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 73:523 I. INTRODUCTION The exchange of sexual services for money is the only form of con- sensual adult sexual activity that is systematically subject to criminal sanc- tions in the United States at the end of the twentieth century.8 The United States is unique among the nations of Western Europe and the British Commonwealth in imposing and enforcing criminal sanctions on people who offer sexual services for money.9 8. The American Law Institute does not define either adultery or fornication as a crime in its Model Penal Code, observing that such laws are widely disobeyed and rarely enforced. See MODEL PENAL CODE § 213 note on adultery and fornication (1980). Only a few U.S. states prohibit fornication. See MITCH BERNARD, ELLEN LEVINE, STEPHEN PRESSER & MARIANNE STECHICH, THE RIGHTS OF SINGLE PEOPLE 13 (1985). Several states have held that fornication statutes are unconstitutional. See Purvis v. State, 377 So. 2d 674 (Fla. 1979); State v. Pilcher, 242 N.W.2d 348 (Iowa 1976); State v. Saunders, 381 A.2d 333 (N.J. 1977). Where such
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